In a continuation of the "Difficult Dialogues" series here at KU which was kicked off by Ken Miller, Judge Jones III gave a lecture at KU last night followed by an additional dialogue Wednesday morning. Unfortunately, I teach my lab section on Tuesday night, so I wasn't able to attend. If you're wanting to know what went on, check out RSR's entry.
I did end up making it to the Q&A session Wednesday morning. As I did with the Miller sessions, I'll post the paraphrased question in italics, followed by the paraphrased answer in regular text.
Q1. Was the decision in the Dover case based more on law (ie the constitution) or a lack of credibility of the defendants?
A1. Obviously, the first obligation is to the law. However, Judge Jones said repeatedly that he felt the school board members (two in particular) "lied" during their deposition and on the stand. He says that while "lied" is a strong term, he feels it is necessary. Ultimately, the Lemon Test was applied so the answer to the question was "both".
Q2. Last night, the House passed the Public Expression of Religion Act. What are your thoughts on this? (NOTE: A press release from a news agency was read, but I couldn't find one that had the same content.)
A2. The press release showed how things are frequently misrepresented in the media in that it said Judge Jones "awarded two million dollars" to the defendants for legal fees. This is a mischaracterization. In reality, the two parties agreed that the legal fees were worth that amount and Judge Jones just signed the paperwork making it official. He also noted that it was eventually settled to be only half that amount.
The obvious reasoning behind this law is to discourage those that would blithely break the constituion by making severe financial reprocussions. It also allows for those that would not otherwise have the funding to pay for attorneys to challange those that do.
But the law creating this tradition was created by congress, and as Judge Jones said multiple times, "Congress gives. Congress taketh away." He didn't speak much more about the bill itself, nothing that he hadn't read it, but suggested he was weary of it because if there is no penalty, then how do you discourage people from breaking the seperation of church and state?
The article also mentioned that it is in part designed to stop groups like the ACLU from "profiteering". Jones noted that there's a lot of people that don't like the ACLU on principle, but as a judge, he had no particular opinion except to say that they were extremely organized. Meanwhile, the Thomas Moore Law Center did not do so well in that regard. He said that, had the defendants decided to pay for an attorney (instead of accepting the free council from the Thomas Moore Law Center), that he doubts that any attorney would have suggested not letting the case go to trial.
Lastly, he noted that he disapproved of "showboating", in which people "dare" to do things like Roy Moore placing the monument of the ten commandments in the federal judiciary building, knowing jurisprudence. PERA would only serve to endorse more cases of such things.
Q3. (From the Angry Astronomer) Many people reading the ruling in the Dover case have remarked on the surprisingly simple language. To what extent was this intentional?
A3. Quite intentional. Knowing that this decision would be of a great deal of interest to the public, Judge Jones said he rewrote parts many times, especially the conclusion. But at the same time, it wasn't terribly different than his decisions in any other case. He suggests that judges need to realize they're writing for the parties and not just the lawyers.
Q4. In the past, we have seen events of the executive branch trying to subvert the judiciary such as Roosevelt's effort to pack the supreme court. Is this common today, and how does the president interact?
A4. There's always thension. The founders gave life tenure to judges and occasionally the other branches may be "jealous". Early in the country's history there were attempts to impeach judges based on their rulings. Roosevelt's case was the most egragarious example as well as the Warren courts in the 60's, but fortunately that doesn't seem to be happening as much now.
Q5. What led you to rule as you did in Dover?
A5. The Endorsement test is common in the Thrid District. But just to be safe, Judge Jones said he applied both the Lemon and Endorsement in a "belt and suspenders approach." Since the endorsement test combines intent as well as effect, it required him to comment on whether or not ID is science. Not doing so would have made it likely that the trial would be repeated elsewhere. But it was "painfully evident" that Dover's motives were religious. However, the religious motivations may be sanitized elsewhere which also produced the need to rule on whether or not ID is science.
Additionally, Judge Jones pointed out that some people give him flak for ruling on what is and is not science. But, he says, this happens all the time. He says that judges should rule as narrowly when possible, but the ruling on ID as pseudo-science was prudent.
Q6. I'd attempts to appeal to the public as a smokescreen to hide their lack of science. How do we get around the ID marketing ploy?
A6. Ken Miller and Dr. Behe went on a "roadshow" in which where one went, the other would follow. Ultimately, ID should fall because it couldn't hold up under cross examination. The Discovery Institute can't seem to get over this nearly a year later and is "obsessing."
Q7. Those on school boards don't understand how the law works. There is frequently an attempt to get a certin court so rulings will be more favorable.
A7. Typically, judges get things right and are impartial. This isn't to say that there aren't some out there that aren't but that's why it's important to really scrutinize candidates. If they serve for life, their entire background should be "fair game." While this is what happens, it also results in some that are deserving of the position getting removed from consideration for being in the wrong place at the wrong time. Judge Jones says he underwent an intensive seven week background check by the FBI in which they contacted everyone he knew. At first he found it amusing when friends from high school called saying the FBI just contacted them asking about him, but it became "kinda scary" when they started walking around the neighborhood knocking on neighbors doors.
Q8. So do you accept or decry "litmus questions"?
A8. Judges should not be asked how they're going to rule before the fact. There are far too many variables. Judge Jones also pointed out that he was appointed by the Bush administration and never litmus tested. He suggested that that's not how the current White House works.
Q9. Behe said ID only works if you already believe in God. But ID is the only "science" that requires this presupposition. Thus is this possibly the basis for a new test for court rulings?
A9. The Daubert Test is applied to determine good science. It looks for science that is peer reviewed, generally accepted, empirically verifiable, etc... Judge Jones found that ID did not meet these criteria for being good science. On the bench, Jones notes that Behe was at least candid and honest, unlike the school board members. But he was not conciously trying to create a new test.
Q10. Judicial Independence and Scientific Independence seem to go hand in hand. Is there a common threat socially or culturally?
A10. There could be. But more than that, the independence of teachers is at stake too. Judge Jones said he found it "alarming how the teachers were treated by the school board" having opposed the ID policy to the person.
Q11. Does the excellence of judges take the pressure off the electorate? Have poor laws been made as a result?
A11. Short answer: Possibly if not probably.
Judge Jones also mentioned in a bit of a tangent that he has no clue what the Discovery Institute actually does.
Q12. You've mentioned that the school board members "lied". Are there personal consequences for this?
A12. Two of the school board members were referred to the US attorney, but Judge Jones said he has no knowledge of how that's proceeding. It was, however, the first time he'd felt it necessary to take such an action. Had they told the truth, there could have been an injunction which would have prevented the fees and costs the defendants were "awarded". But this was not sought.
Q13. Is there any personal liability that they be made responsible for the 2 million that was awarded?
A13. Not at this point. The school board that replaced the incumbents could have attempted to sue as well as taxpayers in an attempt to surcharge, but that option was not sought.
Q14. Canada does not have a local form of control over schools. Is it becoming time that the US adopt this approach?
A14. Most people seem to be of the opinion that school board should be responsible to the electorate. The lesson from Dover is that people should pay attention for whom they vote.
Q15. Hisorically we have repeatedly seen faith vs. science vs. law. Any opinions on why this keeps happening?
A15. This is a nation full of religious people. They draw comfor from this and as such there we are "going to have inevitable collisions." Part of the job of schools is to make better citizens. Some feel this means the inclusion of religion which brings it into conflict with the law. Also, jurisprudence changes over generations.
Q16. Is homeschooling a threat to public schools?
A16. It's fine. Judge Jones said he doesn't see that it leads to collisiobns.
Q17. Do you think your ruling will influence future rulings on ID?
A17. Obviously one cannot say, but Judge Jones says he hopes it will be influential. However, it's not binding outside of Pennsylvania but he hopes it will discourage those that are pushing for ID.
Q18. What effect did the Dover case have on you personally?
A18. Judge Jones said it has brought to light how seriously the public misunderstands the court system and how people are typecast (such as him being pegged as a "conservative" judge). He points out that because of this misunderstanding, judges should feel obliged to speak out.